Lewis v Eleazer
| Jurisdiction | Guyana |
| Judge | Persaud, J.A. |
| Judgment Date | 19 September 1996 |
| Neutral Citation | GY 1996 CA 5 |
| Docket Number | Civil Appeal No. 26 of 1995 |
| Court | Court of Appeal (Guyana) |
| Date | 19 September 1996 |
Court of Appeal
Bishop, C., Perry, J.A. and Persaud, J.A.
Civil Appeal No. 26 of 1995
Mr. R. Gajraj for the appellant.
Mr. B.F. Gibson for the respondent.
Will - Validity — Respondent attorney—at—law who prepared the will was named as executor — Allegation by appellant husband of the deceased that the will was a forgery — Judgment in favour of respondent at first instance ordered vacated and matter remitted to High Court for trial de novo.
The appellant was the husband of the decease, Marlin Lewis, who died on the 26th February, 1992, and who purported to execute her last will and testament on the 29th January, ‘1992 at the Davis Memorial Hospital, Georgetown. Named as Executor in the will is Mr. R.J. Eleazer, attorney-at-law, who himself prepared the will on the instructions of the deceased.
On the 19th May, 1992 the respondent in his capacity as Executor named in the will of the deceased, probate however not yet granted, filed action against the appellant claiming, in the Indorsement, damages for trespass, an injunction against him restraining him .from remaining or entering into or on the premises of the deceased, an order for appellant to return throe motor vehicles, an injunction restraining the appellant from interfering with arty of the contents of the house of the deceased, or in anyway dealing with same, and such further or other order as to the court seems just.
On the 11th May, 1992 the respondent swore to an affidavit in an ex-parte application for interim injunction, in which he pleaded that on the 18th March, 1992 he informed the appellant by letter that his late wife left a will in which he, the respondent, was named Executor; that I the deceased left him, the appellant, the sum of $500.00; and in the circumstances he gave the appellant two weeks notice to vacate the premises, failing which steps will be taken to have him removed therefrom.
In response to that affidavit, the appellant in May, 1992 swore that the will referred to by the respondent is a complete forgery, that a photocopy of a will was forwarded to him by post under cover of a letter dated May 20, 1992 from a Norma Jackman of the office of the President Exhibit “F”; that on the 26th March, 1992 his attorney-at-law wrote the respondent to advise him of the terms of the will, but he got no reply to the request; that he made many inquiries at the Probate Registry and was told no will was lodged; that he applied for and obtained Letters of Administration of the deceased estate, No. 341 of 1992, having paid a sum in excess of $117,000.00 in duty.
The respondent filed his statement of claim on the 9th September, 1992 and claimed (a) an order pronouncing 9.n favour of the document - will; (b) an order revoking the grant of administration granted to the appellant; and an account by the defendant of his dealings and intromissions with the estate of the deceased; and of course, costs.
In his defence to the statement of claim, the appellant made no admission as to the will, but pleaded that he obtained the Grant of Administration in his capacity as husband of the deceased after he had made diligent enquiries and searches for any will.
The respondent did not pursue his claim for damages for trespass, nor for any of the reliefs he sought when he filed his action. The appellant on the other hand did not plead that the will was a forgery as he did when he replied to the application for Injunction. The case for the respondent proceeded on the basis that he hard to satisfy the court of the validity of the will he pleaded. The defence was a denial of the existence of any will.
In his judgment the learned trial judge pronounced for the force and validity of the document in solemn form, and ordered the revocation of the Grant of Administration No. 341/92.
At the hearing of the action before the learned trial judge, Rajendra Rudram, Senior Registry Officer, who kept wills and dealt with matters touching them, deposed that on the 9th February, 1992, a will was lodged at the Probate section “for safe custody after death.” The will, he deposed, concerned Merlin Wilson, and he proceeded to tender the will which was admitted by consent and marked Ex. “A”. This document concerns Merlin Lewis. He further deposed that the will was lodged by the respondent, Mr. Eleazer.
The respondent, Eleazer, deposed of his preparing the will on the instructions of the deceased; that the mother of the deceased took the document and later returned same to him after the death of the deceased, and he did not think of lodging it at the Registry.
Inspector of Police Twan Thomas testified on behalf of the appellant. He is a handwriting expert attached to the Guyana Police Force. He deposed that he was given a document - a will. - to examine. He went to the probate Registry and saw another document which was not an identical copy of the document given to him. The sum total of his evidence was that the document was a forgery. Objection was taken to the admissibility of the evidence of Thomas on the ground that fraud was not alleged or pleaded by the defence, but the learned trial judge over-ruled the objection and admitted the evidence. The evidence of Thomas dealt exclusively and exhaustively with the comparison of documents and it impelled the trial judge to find, in his judgment, that “in the plaintiff's case there is no evidence which excited the suspicion of the court. Some material pointing in that direction arise in the defendant's case. But it was not pleaded and I am therefore bound to exclude it from consideration.”
O. 17, r.29 of the Rules of the High Court, 1955 (C) provides as follows:–
“In Probate actions it shall he stated with regard to every defence which is pleaded what in the substance of the case on which it is intended to rely; and further where It is pleaded that the testator was not of sound mind, memory and understanding, particulars of any specific instances of delusion shall be delivered before the case is set down for trial, and, except by leave of the court or a judge, no evidence shall be given of any other instance at the trial.”
Having reward to the pleadings in this matter the learned judge appeared to be on safe ground when he ruled that since fraud was not pleaded he could not consider the evidence. But he could have granted leave to include say other ground or challenge to the plaintiff's case. O. 17, r.29 gives the court or a judge such discretion, and no doubt, such discretion should be exercised in a judicial manner, and not capriciously or whimsically. Is this case a fitting one for the exercise of such a discretion? Let me examine the circumstances of and the...
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